The tribunal against the Khmer Rouge in Cambodia has ended after 16 years

PHNOM PENH, Cambodia — An international tribunal has convened in Cambodia to try the brutalities of the Khmer Rouge regime, which killed an estimated 1.7 million people in the 1970s. He ends his job Thursday after spending $337 million and 16 years to convict just three men of crimes.

In what was to be its final hearing, the UN-backed tribunal rejected an appeal by Khieu Samphan, the last surviving leader of the Khmer Rouge government that ruled Cambodia from 1975-79. He was convicted in 2018 of genocide, crimes against humanity and war crimes and received a life sentence, a sentence confirmed on Thursday.

Read more: A brief history of the Khmer Rouge

He appeared in court Thursday wearing a white windbreaker, sitting in a wheelchair, wearing a face mask and listening to the proceedings through a pair of headphones. Seven judges were present.

Khieu Samphan was the group’s nominal head of state, but denied in his trial defense that he had any real decision-making authority when the Khmer Rouge carried out a reign of terror to establish a utopian agrarian society, causing Cambodians to die by execution, starvation and inadequate medical care. He was ousted in 1979 by an invasion from neighboring communist country Vietnam.

Cambodian refugee children wait their turn at an aid organization's feeding station northwest of Phnom Penh, Cambodia, January 9, 1975. The youths and their families fled the Phnom Basset area after Khmer Rouge raids nearby.  (Tea Kim Heang aka Moonface—AP)

Cambodian refugee children wait their turn at an aid organization’s feeding station northwest of Phnom Penh, Cambodia, January 9, 1975. The youths and their families fled the Phnom Basset area after Khmer Rouge raids nearby.

Tea Kim Heang aka Moonface—AP

“No matter what you decide, I will die in prison,” Kieu Samphan said in his latest appeal to the court last year. “I will die always remembering the suffering of my Cambodian people. I will die when I see that I am alone in front of you. I am judged symbolically, not according to my actual deeds as an individual.”

In his appeal, he argued that the court made errors of law and interpretation and acted unfairly by objecting to more than 1,800 counts.

But the court noted Thursday that his appeal did not directly challenge the facts of the case presented in court. He rejected almost all of the arguments raised by Khieu Samphan, admitting error and reversing his decision on one minor issue. The court said it found most of Khieu Samphan’s arguments “unfounded” and that many of them were “alternative interpretations of the evidence”.

The court announced that its decision of several hundred pages would be official when it was published, and ordered that Khieu Samphan be returned to the purpose-built prison where he is being held. He was arrested in 2007.

Thursday’s ruling makes little practical difference. Khieu Samphan is 91 years old and already serving another life sentence for his 2014 conviction for crimes against humanity related to forced transfers and mass disappearances.

His co-defendant Nuon Chea, the Khmer Rouge’s number two leader and chief ideologue, was convicted twice and received the same life sentence. Nuon Chea died in 2019 at the age of 93.

Khmer Rouge leaders on a train between Phnom Penh and Sihanoukville in Cambodia in 1975. Pol Pot is left, front row;  Nuon Chea is behind him;  and Ieng Sary is on the right side, in the first row.  (Gamma-Rapho—API/Getty Images)

Khmer Rouge leaders on a train between Phnom Penh and Sihanoukville in Cambodia in 1975. Pol Pot is left, front row; Nuon Chea is behind him; and Ieng Sary is on the right side, in the first row.

Gamma-Rapho—API/Getty Images

The tribunal’s only other conviction was that of Kaing Guek Eav, also known as Duch, who was the commandant of Tuol Sleng Prison, where an estimated 16,000 people were tortured before being taken to be killed. Dutch was convicted in 2010 of crimes against humanity, murder and torture and died in 2020 at the age of 77 while serving a life sentence.

The real leader of the Khmer Rouge, Pol Pot, escaped justice. He died in the jungle in 1998 at the age of 72, while the remnants of his movement were fighting their last battles in the guerilla warfare that began after losing power.

Read more: 40 years after the fall of the Khmer Rouge, Cambodia is still struggling with the brutal legacy of Pol Pot

The trials of the only other two defendants have not ended. Former Khmer Rouge Foreign Minister Yeng Sary died in 2013, and his wife, former Minister of Social Affairs Yeng Thirit, was deemed unfit to stand trial due to dementia in 2011 and died in 2015.

Four other suspects, mid-ranking Khmer Rouge leaders, escaped prosecution because of a split among the tribunal’s jurists.

In an innovative hybrid arrangement, Cambodian and international lawyers were paired at every stage and a majority had to agree for the case to proceed. Under the French-style judicial procedures the court uses, international investigators recommended the four be tried, but Cambodian partners disagreed after Cambodian Prime Minister Hun Sen announced there would be no further prosecutions, claiming they could cause unrest .

Hun Sen himself was a mid-ranking commander in the Khmer Rouge before defecting while the group was still in power, and several senior members of his ruling Cambodian People’s Party have similar backgrounds. He helped consolidate his political control by forging alliances with other former Khmer Rouge commanders.

After its active work, the tribunal, officially called the Extraordinary Chambers in the Courts of Cambodia, is now entering a three-year “rest” period, focusing on organizing its archives and disseminating information about its work for educational purposes.

Experts who participated in or observed the court’s work are now reflecting on its legacy.

Read more: The Khmer Rouge trials in Cambodia have been a shocking failure

Heather Ryan, who spent 15 years following the tribunal for the Open Society Justice Initiative, said the court had succeeded in ensuring some level of accountability.

“The amount of time, money and effort expended to achieve this rather limited goal may be disproportionate to the goal,” she said in a video interview from her home in Boulder, Colorado.

But she praised the trials “in the country where the atrocities took place and where people were able to pay some attention and gather information about what was going on in the court to a much greater extent than if the court was in The Hague or anywhere else.” The Hague in the Netherlands hosts the World Court and the International Criminal Court.

Michael Karnavas, an American lawyer who served on Ieng Sari’s defense team, said his personal expectations were limited to the quality of justice his clients would receive.

“In other words, regardless of the results, substantively and procedurally, are their rights to a fair trial guaranteed by the Cambodian constitution and established law afforded them at the highest international level?” he said in an email interview. “The answer is a bit mixed.”

“The stage of the trial was less than what I think is fair. There was too much improvisation on the part of the judges and despite the length of the proceedings, the defense was not always treated fairly,” said Karnavas, who has also appeared before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

“In terms of substantive and procedural law, there are many examples where the ECCC has not only gotten it right, but has further contributed to the development of international criminal law.”

There is consensus that the tribunal’s legacy goes beyond the law books.

The memorial stupa at Choeung Ek - where mass graves containing 8,895 bodies were discovered after the fall of the Khmer Rouge regime - about 17 kilometers south of Phnom Penh.  It is the most famous of the sites known as The Killing Fields and is now a memorial marked by a Buddhist stupa filled with more than 5,000 human skulls.  (Shaul Schwartz—Getty Images)

The memorial stupa at Choeung Ek – where mass graves containing 8,895 bodies were discovered after the fall of the Khmer Rouge regime – about 17 kilometers south of Phnom Penh. It is the most famous of the sites known as The Killing Fields and is now a memorial marked by a Buddhist stupa filled with more than 5,000 human skulls.

Shaul Schwartz—Getty Images

“The court successfully attacked the long-standing impunity of the Khmer Rouge and showed that, although it may take a long time, the law can catch up with those who commit crimes against humanity,” said Craig Etcheson, who has researched and written about the Khmer Rouge and was the head of prosecution investigations at the ECCC from 2006 to 2012.

“The tribunal has also created an extraordinary archive of these crimes, including documentation that will be studied by scholars for decades to come, that will educate the youth of Cambodia about their country’s history, and that will profoundly frustrate any attempt to deny the crimes of the Khmer Rouge.

The key question of whether justice was served by the court’s verdicts against just three men was addressed by Yok Chang, director of the Cambodia Documentation Center, which holds a vast amount of evidence of atrocities committed by the Khmer Rouge.

“Justice is sometimes satisfaction, recognition, not the number of people you go after,” he told The Associated Press. “It’s a broad definition of the word justice itself, but when people are satisfied, when people are satisfied with the process or benefit from the process, I think we can conceptualize it as justice.”

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